pa office of attorney general - united states court of … · 2018-09-25 · no. 18-1514 united...

No. 18-1514

UNITED STATES COURT OF APPEALSFOR THE FIRST CIRCUIT

COMMONWEALTH OF MASSACHUSETTS,Plaintiff-Appellant,

v.

U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES et al.,Defendants-Appellees.

On Appeal from the United States District Court for theDistrict of Massachusetts, No. 1:17-cv-11930

BRIEF FOR PENNSYLVANIA, CALIFORNIA, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, HAWAIʻI, IOWA, MAINE,

MARYLAND, MINNESOTA, NEW YORK, NORTH CAROLINA, OREGON, RHODE ISLAND, VERMONT, VIRGINIA, AND

WASHINGTON AS AMICI CURIAE IN SUPPORT OF APPELLANT

Date: September 24, 2018

(Additional Counsel on Signature Page)

JOSH SHAPIRO

Attorney General of PennsylvaniaJONATHAN SCOTT GOLDMAN

Executive Deputy Attorney GeneralMICHAEL J. FISCHER

Chief Deputy Attorney GeneralAIMEE D. THOMSON

Deputy Attorney General Office of Attorney GeneralStrawberry SquareHarrisburg, PA 17120(215) [email protected]

Case: 18-1514 Document: 00117343141 Page: 1 Date Filed: 09/24/2018 Entry ID: 6200400

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTEREST OF AMICI CURIAE..............................................................................1

SUMMARY OF ARGUMENT .................................................................................2

ARGUMENT.............................................................................................................3

I. Massachusetts Has Article III Standing Because Its Proprietary Interests Will Be Irreparably Harmed by the Rules. ............................................5

A. Access to Affordable Contraception is Vital to Women’s Healthand Economic Opportunity..............................................................................5

B. The Rules Will Cause Women to Lose Contraceptive Coverage, Causing Them and Amici States Irreparable Harm.........................................8

1. The Rules Will Cause Hundreds of Thousands of Women to Lose Employer-Sponsored Contraceptive Coverage. ............................9

2. States Will Bear the Costs of Providing Contraceptive Coverageto Women Who Lose It. ..........................................................................11

3. States Will Bear Increased Costs from Unintended Pregnancies and Complications When Women Cannot Get Coverage........................13

II. Massachusetts Has Parens Patriae Standing Because the Rules WillInjure the Commonwealth’s Quasi-Sovereign Interests.....................................15

A. Massachusetts Has the Right to Protect Its Quasi-Sovereign Interests.........15

1. The Modern Doctrine of Parens Patriae Standing Allows States to Protect Their Quasi-Sovereign Interests....................................16

2. Massachusetts Has a Right to Bring a Parens Patriae Suit toProtect Its Quasi-Sovereign Interests. ......................................................22

B. Prudential Limitations on Parens Patriae Standing Do Not Bar Massachusetts’ Suit. ......................................................................................26

CONCLUSION........................................................................................................31

CERTIFICATE OF COMPLIANCE.......................................................................35

CERTIFICATE OF SERVICE ................................................................................36


ii

TABLE OF AUTHORITIES

CasesAlfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez,

458 U.S. 592 (1982).................................................................................... passim

Allen v. Wright, 468 U.S. 737 (1984) ........................................................................4

Challenge v. Moniz, 218 F. Supp. 3d 1171 (E.D. Wash. 2016) ..............................27

Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332 (1st Cir. 2000)..................16

Fontain v. Ravenel, 58 U.S. 369 (1854) ..................................................................16

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) ........................... 17, 21, 23

Hawai‘i v. Standard Oil Co. of Cal., 405 U.S. 251 (1972) ........................ 16, 2, 3, 4

Kansas v. Colorado, 206 U.S. 46 (1907).................................................................17

Louisiana v. Texas, 176 U.S. 1 (1900).............................................................. 16, 17

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .............................................. passim

Massachusetts v. EPA, 549 U.S. 497 (2007) ................................................... passim

Massachusetts v. Mellon, 262 U.S. 447 (1923) .................................... 26, 27, 28, 29

Md. People’s Counsel v. FERC, 760 F.2d 318 (D.C. Cir. 1985) ............................27

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) ....................7, 24

Missouri v. Illinois, 180 U.S. 208 (1901) ................................................... 17, 21, 23

New York v. New Jersey, 256 U.S. 296 (1921)........................................................18

North Dakota v. Minnesota, 263 U.S. 365 (1923)...................................................18

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ............................................... passim

Texas v. United States, 809 F.3d 134 (5th Cir. 2015)..............................................30


iii

Warth v. Seldin, 422 U.S. 490 (1975)............................................................... 26, 27

Constitutional ProvisionsU.S. Const. art. III, § 2 ...............................................................................................3

Statutes29 U.S.C. § 1144(a) .............................................................................................7, 24

29 U.S.C. § 1144(b)(2)(A)...................................................................................7, 24

42 U.S.C. § 300gg-13(a)(4) .....................................................................................24

5 U.S.C. § 553(b) .....................................................................................................25

5 U.S.C. § 553(c) .....................................................................................................25

5 U.S.C. § 702..........................................................................................................30

5 U.S.C. § 706................................................................................................... 22, 25

5 U.S.C. § 706(2) .....................................................................................................30

Advancing Contraceptive Coverage and Economic Security in our State (ACCESS) Act, 2017 Mass. Acts ch. 120 ..........................................................23

Other Authorities3 William Blackstone, Commentaries .....................................................................16

Adam Sonfield & Kathryn Kost, Public Costs from Unintended Pregnancies and the Role of Public Insurance Programs in Paying for Pregnancy-Related Care: National and State Estimates for 2010, Guttmacher Inst. (Feb. 2015) ..............14

Adam Sonfield et al., The Social and Economic Benefits of Women’s Ability to Determine Whether and When to Have Children, Guttmacher Inst. (Mar. 2013) ...........................................................................................................6

Black’s Law Dictionary (10th ed. 2014) .................................................................16


iv

Brief of Massachusetts, Connecticut, District of Columbia, Hawaiʻi, Illinois, Iowa, Maine, Minnesota, North Carolina, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington as Amici Curiae Supporting Appellees, California et al. v. Azar et al. (9th Cir. No. 18-15255) ......................................................................................12

Carey Goldberg, Countering Trump, Mass. Swiftly Passes New Law Ensuring Access To No-Cost Birth Control, WBUR (Nov. 20, 2017) ..............................24

Guttmacher Inst., Improving Contraceptive Use in the United States(May 2008)............................................................................................................7

Guttmacher Inst., Insurance Coverage of Contraceptives (Sept. 1, 2018)............2, 7

Guttmacher Inst., Medicaid Family Planning Eligibility Expansions (Sept. 1, 2018)........................................................................................ 11, 12, 13

Guttmacher Inst., Publicly Funded Family Planning Services in the United States (Sept. 2016) ..................................................................................11

Henry J. Kaiser Family Found., 2016 Employer Benefits Survey(Sept. 2016).....................................................................................................8, 10

Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps (2011) ................................................................................................. 5, 6, 7

Jennifer J. Frost et al., Contraceptive Needs and Services, 2014 Update, Guttmacher Inst. (Sept. 2016)...............................................................................5

Laurie Sobel et al., The Future of Contraceptive Coverage, Henry J. Kaiser Family Found. (Jan. 2017) ................................................................................................7

Pa. Dep’t of Human Servs., Family Planning .........................................................12

Pl.’s Mot. Prelim. Inj., Pennsylvania v. Trump, 281 F. Supp. 3d 553 (2017) (No. 17-4540)........................................................................................................9

R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 290 (5th ed. 2003) ...............................................................20


v

Rachel K. Jones, Beyond Birth Control: The Overlooked Benefits of Oral Contraceptive Pills, Guttmacher Inst. (Nov. 2011)..............................................6

U.S. Congress, Joint Econ. Comm., The Economic Benefits of Access to Family Planning (Oct. 2015) ............................................................................................6

U.S. Dep’t of Health & Human Servs., Health Res. & Servs. Admin., Women’s Preventive Service Guidelines (2016) ................................................................25

Regulations130 Code Mass. Regs. 450.317................................................................................14

Annual Update of the HHS Poverty Guidelines, 83 Fed. Reg. 2642 (Jan. 18, 2018).....................................................................................................12

Coverage of Certain Preventive Services under the Affordable Care Act, 78 Fed. Reg. 39,870 (July 2, 2013).....................................................................13

Moral Exemptions and Accommodations for Coverage of Certain Preventive Services under the Affordable Care Act, 82 Fed. Reg. 47,838 (Oct. 13, 2017) ............................................................................................. 3, 8, 9

Religious Exemptions and Accommodations for Coverage of Certain Preventive Services under the Affordable Care Act, 82 Fed. Reg. 47,792 (Oct. 13, 2017) ........................................................................... 2, 8, 9, 10, 11, 14


1

INTEREST OF AMICI CURIAE

Access to contraception advances educational opportunity, workplace

equality, and financial empowerment for women; improves the health of women

and children; and reduces healthcare related costs for individuals, families, and

states. As a result of the Patient Protection and Affordable Care Act (ACA),

women across the country enjoy access to cost-free contraceptive services through

their employer-sponsored insurance. The Commonwealths of Pennsylvania and

Virginia, the States of California, Connecticut, Delaware, Hawaiʻi, Iowa, Maine,

Maryland, Minnesota, New York, North Carolina, Oregon, Rhode Island,

Vermont, and Washington, and the District of Columbia (the “Amici States”) have

a compelling interest in protecting the health, well-being, and economic security of

their residents and ensuring they enjoy the full scope of rights to which they are

entitled under the ACA.

Recognizing the broad socio-economic and health benefits of affordable

contraception, Amici States are committed to making contraception widely

available and affordable for their residents. For example, Amici states provide

access to contraceptive services through state-funded programs and others means.

In addition, many states require state-regulated insurance plans to cover

contraceptive services, and an increasing number mandate that contraceptive


2

coverage be cost-free.1 But because federal law preempts state regulation of self-

funded insurance plans, state laws fail to reach tens of millions of residents; many

receive access to contraceptive coverage only due to the ACA’s contraceptive

mandate. For these reasons and others, Amici States have a strong interest in

ensuring that the Defendants implement the ACA fully and in ways that promote

women’s health and equality and do not impose additional costs on the states.2

SUMMARY OF ARGUMENT

Access to affordable contraception is vital for women and families—not just

as necessary healthcare, but as a stepping stone to educational and professional

achievement, socio-economic autonomy, and economic prosperity. Yet the

Defendants’ Interim Final Rules (the “Rules”) allow employers with religious or

moral objections to deny employees and their dependents contraceptive coverage

otherwise required under the ACA. Religious Exemptions and Accommodations

for Coverage of Certain Preventive Services under the Affordable Care Act, 82

Fed. Reg. 47,792 (Oct. 13, 2017); Moral Exemptions and Accommodations for

1 Guttmacher Inst., Insurance Coverage of Contraceptives (Sept. 1, 2018),

https://www.guttmacher.org/state-policy/explore/insurance-coverage-contraceptives.

2 Several Amici States have already litigated in defense of these interests. E.g., Pennsylvania v. Trump, 281 F. Supp. 3d 553 (E.D. Pa. 2017), on appeal No. 18-1253 (3d Cir.); California v. Health & Human Servs., 281 F. Supp. 3d 806 (N.D. Cal. 2017), on appeal, No. 18-15255 (9th Cir.).


3

Coverage of Certain Preventive Services under the Affordable Care Act, 82 Fed.

Reg. 47,838 (Oct. 13, 2017). These Rules violate the Constitution and federal

statutes and will cause inevitable and irreparable harm.

Massachusetts has Article III standing to protect itself and its residents.

Depriving women of access to cost-free contraception mandated by the ACA will

cause women to turn to state-funded programs for contraceptive services.

Massachusetts and the Amici States will not only bear these additional costs, but

will also bear the costs of increased unplanned pregnancies for those women who

will no longer have access to contraception due to the Rules. These increased

financial burdens directly harm state proprietary interests and therefore establish

Article III standing. In addition, Massachusetts and the Amici States have well-

established quasi-sovereign interests in the health and well-being of their citizens

and in ensuring they have full and equal enjoyment of federal law. Because the

Rules threaten these interests, Massachusetts and the Amici States also have

parens patriae standing to challenge their legality.

ARGUMENT

Article III of the U.S. Constitution limits the jurisdiction of federal courts to

“Cases” and “Controversies.” U.S. Const. art. III, § 2. At an “irreducible

minimum,” every plaintiff must allege “(1) an injury that is (2) ‘fairly traceable to

the defendant’s allegedly unlawful conduct’ and that is (3) ‘likely to be redressed


4

by the requested relief.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 590 (1992)

(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). To establish a constitutionally

sufficient injury, the plaintiff “must show that he or she suffered ‘an invasion of a

legally protected interest’ that is ‘concrete and particularized’ and ‘actual or

imminent.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan,

504 U.S. at 560).

The Supreme Court has long recognized that states possess three distinct

types of interests—sovereign, proprietary, and quasi-sovereign—the invasion of

which constitutes a cognizable injury-in-fact. Alfred L. Snapp & Son, Inc. v. Puerto

Rico, ex rel., Barez, 458 U.S. 592, 601–02 (1982). A state’s sovereign interests

include “the exercise of sovereign power over individuals and entities” within its

borders, such as through the creation and enforcement of a civil criminal legal

code, and “the demand for recognition from other sovereigns,” such as through the

“maintenance and recognition of borders.” Id. at 601. A state’s proprietary interests

arise from its own property and business relationships. Id. at 601–02. And a state’s

quasi-sovereign interests include, at a minimum, those that the state has in “the

well-being of its populace” and in securing full and equal participation in the

federal system. Id. at 602, 607–08.

The Rules invade the latter two categories of interests of Amici States: they

will directly injure states’ proprietary interests through the increased use of state-


5

sponsored programs that provide contraceptive and medical services, and they will

directly injury states’ quasi-sovereign interests through harm to state residents’

well-being and denial of state residents’ full enjoyment of federal benefits.

I. Massachusetts Has Article III Standing Because Its Proprietary Interests Will Be Irreparably Harmed by the Rules.

A. Access to Affordable Contraception is Vital to Women’s Health and Economic Opportunity.

Access to affordable contraception is vital to the health and economic well-

being of women and their families. Millions of women need contraception,

including more than 24 million women in Massachusetts and Amici States.3 They

rely on contraception for birth control, general health, and economic opportunity.

Contraception reduces the risk of unintended pregnancies, adverse

pregnancy outcomes, and health risks associated with pregnancy.4 Indeed, for some

women, pregnancy can be life-threatening.5 But contraception is not only used for

birth control. It is frequently prescribed to treat menstrual disorders, acne, pelvic

pain and other medical conditions. Long-term use of oral contraceptives reduces a

3 Jennifer J. Frost et al., Contraceptive Needs and Services, 2014 Update, at

23, Guttmacher Inst. (Sept. 2016), https://www.guttmacher.org/sites/default/files/report_pdf/contraceptive-needs-and-services-2014_1.pdf.

4 See Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps, at 103–07 (2011), https://cdn.cnsnews.com/documents/IOM-CLINICAL%20PREVENTIVE%20SERVICES%20FOR%20WOMEN.pdf.

5 Id.


6

woman’s risk of endometrial cancer and protects against pelvic inflammatory

disease and some benign breast diseases.6 In fact, more than half of all women who

use contraception use it to manage health issues unrelated to birth control.7

Nor are the benefits of contraception limited to healthcare. Contraception

enables women to better plan their families by timing and spacing their own

pregnancies, participate fully in the workforce, and exercise greater control over

their lives and health. Access to contraception increases the number of women who

obtain a college education, pursue advanced degrees, and participate in the paid

labor force.8 This, in turn, boosts women’s earning power, decreases the gender

pay gap, strengthens women’s economic stability, and reduces poverty.9

Overwhelming empirical evidence shows that improving access to

affordable contraception significantly benefits states’ economies: every taxpayer

6 Id.7 See Rachel K. Jones, Beyond Birth Control: The Overlooked Benefits of

Oral Contraceptive Pills, Guttmacher Inst. (Nov. 2011), https://www.guttmacher.org/sites/default/files/report_pdf/beyond-birth-control.pdf.

8 Adam Sonfield et al., The Social and Economic Benefits of Women’s Ability to Determine Whether and When to Have Children 7–17, Guttmacher Inst. (Mar. 2013), https://www.guttmacher.org/sites/default/files/report_pdf/social-economic-benefits.pdf; U.S. Cong., Joint Econ. Comm., The Economic Benefits of Access to Family Planning (Oct. 2015), https://www.jec.senate.gov/public/index.cfm/democrats/2015/10/the-economic-benefits-of-access-to-family-planning.

9 Sonfield et al., The Social and Economic Benefits of Women’s Ability to Determine Whether and When to Have Children, supra note 8; Joint Econ. Comm., The Economic Benefits of Access to Family Planning, supra note 8.


7

dollar invested in family planning saves about seven.10 These benefits are

maximized by providing a range of contraceptive options without cost, which

empowers women to choose and consistently use more effective, reliable forms of

contraception.11

Recognizing these benefits, 28 states and the District of Columbia have

adopted laws that require health plans to provide contraceptive coverage.12 Twelve

of them have ACA-style regulations that currently or prospectively mandate

coverage at no cost.13 The Employee Retirement Income Security Act (ERISA),

however, preempts application of these state laws to the most widespread

employer-sponsored health plans: self-funded plans. See 29 U.S.C. § 1144(a),

(b)(2)(A); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 740–47

(1985).

10 Joint Econ. Comm., The Economic Benefits of Access to Family Planning,

supra note 8; see also Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps, supra note 4, at 107–08.

11 Guttmacher Inst., Improving Contraceptive Use in the United States, at 4–5 (May 2008), https://www.guttmacher.org/sites/default/files/report_pdf/improvingcontraceptiveuse_0.pdf; Laurie Sobel et al., The Future of Contraceptive Coverage, at 4, Henry J. Kaiser Family Found. (Jan. 2017), http://files.kff.org/attachment/Issue-Brief-The-Future-of-Contraceptive-Coverage.

12 Guttmacher Inst., Insurance Coverage of Contraceptives, supra note 1.13 Id.


8

Approximately 61% of covered workers are enrolled in self-funded plans.14

Women with these plans cannot benefit from state laws meant to ensure access to

effective and affordable contraception. Instead, they must depend on the Women’s

Health Amendment to the ACA for guaranteed contraceptive coverage—coverage

that the Rules now seek to erase.

B. The Rules Will Cause Women to Lose Contraceptive Coverage, Causing Them and Amici States Irreparable Harm.

If allowed to go into effect, the Rules will cause hundreds of thousands of

women and their dependents to lose medical coverage guaranteed by the ACA. See

82 Fed. Reg. at 47,815–24; 82 Fed. Reg. at 47,856–58. Indeed, that is the purpose

of the Rules: to allow employers to refuse to provide their employees with

contraceptive coverage to which they are otherwise legally entitled.

The loss of coverage will cause direct and irreparable financial harm to the

states. They will face increased costs from providing contraceptive care services

through already over-burdened state programs. And, where women do not seek or

can no longer get contraceptive care, state programs will face additional costs from

unintended pregnancies and potentially life-threatening medical consequences that

may result.

14 See Henry J. Kaiser Family Found., 2016 Employer Benefits Survey § 10

(Sept. 2016), https://www.kff.org/reportsection/ehbs-2016-section-ten-plan-funding/.


9

For Massachusetts, Amici States, their female citizens, and their families,

the harms caused by the Rules are both concrete and irreparable.

1. The Rules Will Cause Hundreds of Thousands of Women to Lose Employer-Sponsored Contraceptive Coverage.

Defendants’ own regulatory impact analysis conservatively calculated that

between 31,715 and 120,000 women will lose their employer-sponsored

contraceptive coverage due to the Rules. See 82 Fed. Reg. at 47,815–24; 82 Fed.

Reg. 47,856–58.15 The assumptions underlying Defendants’ analysis are highly

questionable, however, and the true number of women who will immediately lose

access to contraceptive coverage may be much higher. See Pl.’s Mot. Prelim. Inj. at

40–42, Pennsylvania v. Trump, 281 F. Supp. 3d 553 (2017) (No. 17-4540). Even

so, these figures only offer a snapshot of the Rules’ direct and immediate effect.

Cumulatively, many more women and their families will be affected over time.

Many of the women who will lose contraceptive coverage under the Rules

work for employers with self-funded plans that are exempt from state regulation

due to ERISA preemption. See 82 Fed. Reg. at 47,820–21. Nationally, these self-

15 Defendants calculated the lower estimate using information about

employers who have objected to providing contraceptive coverage under the ACA, either through litigation or by using the ACA’s existing accommodation. 82 Fed. Reg. at 47,815–21. Defendants calculated the upper estimate using the fraction of employers that excluded contraceptive coverage from their health plans before the ACA went into effect. See id. at 47,821–24.


10

funded plans cover 61% of people with employer-sponsored insurance.16 This is

reflected in the Defendants’ regulatory impact analysis: fewer than one-third of the

women included in the lower estimate are identified as working for employers with

health plans subject to state laws requiring contraceptive coverage,17 and the upper

estimate already effectively excludes women who work for such employers.18 See

82 Fed. Reg. at 47,820–22.

Consistent with these facts, the administrative record identifies multiple

litigating employers that Defendants expect will use the exemptions and that are

located in Massachusetts and Amici States, including DAS Companies Inc., Hobby

Lobby Stores Inc., Global Pump Co., J.E. Dunn Construction Group Inc., Media

Research Center, Mersino Dewatering, and Trijicon, Inc. J.A. 1348–79. Each has

objected to providing contraceptive coverage under the ACA and none is subject to

state laws requiring such coverage: They are either located in states without such

laws or use plans subject to ERISA preemption. See id. Defendants have no

16 See Henry J. Kaiser Family Found., 2016 Employer Benefits Survey, supra

note 14.17 The Defendants’ regulatory impact analysis provides insurance plan

information only for accommodated employers. Including litigating employers would likely increase the proportion of women who have fully-insured plans.

18 The upper estimate is based on data concerning employers who excludedcontraceptive coverage from their health plans in 2010. See 82 Fed. Reg. at 47,822 & n.87. Employers required to provide coverage under state laws in effect prior to the passage of the ACA are necessarily excluded from this estimate.


11

information about additional employers that will use the exemptions, see 82 Fed.

Reg. at 47,815–21, but these companies alone employ tens of thousands of people

across the country, including in Massachusetts and Amici States. See J.A. 1348–

79.

2. States Will Bear the Costs of Providing Contraceptive Coverage to Women Who Lose It.

Defendants admit that many women who lose contraceptive coverage under

the Rules will obtain replacement care and services through state-funded programs.

See, e.g., 82 Fed. Reg. at 47,803. Defendants estimate the direct cost of providing

replacement care and services at between $18.5 and $63.8 million annually. See 82

Fed. Reg. at 47,821, 47,823–24. States will bear a significant share of this cost.

Among Massachusetts and Amici States, eligibility limits for state-

sponsored programs that provide contraceptive care—including Medicaid,

Medicaid Family Planning Expansion, Title X clinics, and State Family

Planning—extend up to 300% of the Federal Poverty Level (FPL) (and in limited

circumstances beyond), with many such programs having limits in the range of

200% to 250% of FPL.19 Pennsylvania’s Family Planning Services program, for

19 Guttmacher Inst., Publicly Funded Family Planning Services in the United

States (Sept. 2016), https://www.guttmacher.org/sites/default/files/factsheet/fb_contraceptive_serv_0.pdf; uttmacher Inst., Medicaid Family Planning Eligibility Expansions (Sept. 1, 2018), https://www.guttmacher.org/state-policy/explore/medicaid-family-planning-eligibility-expansions. Several States


12

example, provides preventive screening and contraceptive services to individuals

and families with incomes up to 220% of the FPL.20 For 2018, many women

earning more than $40,000 per year and some women earning over $70,000 may

be eligible for contraceptive coverage under state programs. Coverage through an

employer typically does not render women ineligible for state-funded services that

the employer-sponsored insurance does not provide.21

Many women denied contraceptive coverage by their employers under the

Rules will remain income-eligible for coverage under state programs. See

Exhibit A.22 For Massachusetts and Amici States this includes 4,988,685 income-

eligible women, with 3,032,023 in self-funded plans. Several states will actually be

offer coverage at or above 300% FPL for groups such as children up to age of 19or individuals with disabilities.

20 Guttmacher Inst., Medicaid Family Planning Eligibility Expansions, supranote 19; see Pa. Dep’t of Human Servs., Family Planning, http://www.dhs.pa.gov/citizens/reproductivehealth/familyplanning/index.htm (last visited Sept. 18, 2018). The 2018 FPL is set at $20,780 for a family of three, $25,100 for a family of four, and higher for larger families. See Annual Update of the HHS Poverty Guidelines, 83 Fed. Reg. 2642, 2643 (Jan. 18, 2018).

21 E.g., Pa. Dep’t of Human Servs., Family Planning, supra note 20.22 This Exhibit was originally presented in Brief of Massachusetts,

Connecticut, District of Columbia, Hawaiʻi, Illinois, Iowa, Maine, Minnesota, North Carolina, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington as Amici Curiae Supporting Appellees, California et al. v. Azar et al. (9th Cir. No. 18-15255).


13

required to fund coverage under existing Medicaid programs.23 At least 1,333,348

women across eleven states will be eligible to receive such services from state

Medicaid, with 954,628 in self-funded plans.24

Where employers refuse to provide coverage for contraceptive care under

the Rules, states will end up paying the cost as more women turn to state programs.

3. States Will Bear Increased Costs from Unintended Pregnancies and Complications When Women Cannot Get Coverage.

While states will pay to mitigate some negative effects of the Rules, many

women will not be able to get replacement coverage. As Defendants have

repeatedly acknowledged, there is no effective substitute for the ACA’s seamless,

no-cost coverage. See, e.g., Coverage of Certain Preventive Services under the

Affordable Care Act, 78 Fed. Reg. 39,870, 39,888 (July 2, 2013). When women

lose coverage due to the Rules, states will be forced to bear additional costs from

23 State Medicaid programs can and do serve as secondary payers for eligible

individuals even if they have other forms of insurance.24 The same criteria were used with the FPL shifted to the basic Medicaid

income threshold (138% FPL). Twenty-five states, including California, Maryland, New York, Pennsylvania, and Virginia, have extended Medicaid eligibility for family planning services above this income threshold. See Guttmacher Inst., Medicaid Family Planning Eligibility Expansions, supra note 19. As a result, this figure likely understates the number of eligible women.


14

the increase in unintended pregnancies and other negative health outcomes to

women and children caused by reduced access to contraception.25

States already spend billions of dollars annually on unintended

pregnancies.26 For instance, in 2010, government-funded programs paid the costs

associated with 68% of births resulting from unplanned pregnancies; for planned

pregnancies, the figure was just 38%.27 The fact that women who lose

contraceptive coverage under the Rules will retain the balance of their coverage

under employer-sponsored plans will not insulate states from harm. Increased

health care costs will be passed on to the states through Medicaid and other state-

funded programs that provide wrap-around coverage and reimbursement for

deductibles, co-insurance, emergency care and other amounts and services not

covered by primary insurance.28

25 Defendants acknowledge that a “noteworthy” potential effect of the Rules

will be an increase in spending on “pregnancy-related medical services.” 82 Fed.Reg. at 47,827–28 & n.113.

26 Adam Sonfield & Kathryn Kost, Public Costs from Unintended Pregnancies and the Role of Public Insurance Programs in Paying for Pregnancy-Related Care: National and State Estimates for 2010, Guttmacher Inst. (Feb. 2015), https://www.guttmacher.org/sites/default/files/report_pdf/public-costs-of-up-2010.pdf.

27 Id.28 See, e.g., 130 Code Mass. Regs. 450.317 (MassHealth’s wrap-around

insurance regulations).


15

* * *

By allowing employers to evade their obligations under the ACA, the Rules

will negatively impact the health, autonomy, and socio-economic equality of

women in Massachusetts, Amici States, and throughout the country. And

Massachusetts and Amici States will bear increased costs associated with

contraceptive services, unplanned pregnancies, and the negative health outcomes

for those forced to go without. These harms, directly attributable to the Rules and

redressible by the Court through injunctive relief, give Massachusetts Article III

standing. See Spokeo, 136 S. Ct. at 1548; Lujan, 504 U.S. at 590.

II. Massachusetts Has Parens Patriae Standing Because the Rules WillInjure the Commonwealth’s Quasi-Sovereign Interests.

In addition to the Commonwealth’s proprietary interests, the Rules threaten

its quasi-sovereign interests in the general “well-being of its populace” and in

“ensuring that the State and its residents are not excluded from the benefits that are

to flow from participation in the federal system.” Snapp, 458 U.S. at 602, 608. This

invasion of its quasi-sovereign interests give Massachusetts standing under the

parens patriae doctrine.

A. Massachusetts Has the Right to Protect Its Quasi-Sovereign Interests.

The parens patriae doctrine is an inherent feature of state sovereignty dating

back to the English constitutional system. Hawaiʻi v. Standard Oil Co. of Cal., 405


16

U.S. 251, 257 (1972). Translated literally, parens patriae means “parent of his or

her country.” Black’s Law Dictionary (10th ed. 2014). In England, the King had

power as parens patriae to protect “persons under legal disabilities to act for

themselves.” Hawaiʻi, 405 U.S. at 257.29 When the United States achieved

independence, “the prerogatives of the crown devolved upon the people of the

States.” Fontain v. Ravenel, 58 U.S. 369, 384 (1854). “The State, as a sovereign”

became the “parens patriae” of its citizenry. Id.; see Hawaiʻi, 405 U.S. at 257. But

as the Supreme Court has recognized, the English definition of parens patriae has

“relatively little to do with the concept of parens patriae standing that has

developed in American law.” Snapp, 458 U.S. at 600. Over more than a century,

the English doctrine of parens patriae has both expanded and shifted, giving a

state the right “to sue as parens patriae to prevent or repair harm to its ‘quasi-

sovereign’ interests.” Hawaiʻi, 405 U.S. at 257–58; see Snapp, 458 U.S. at 600–01;

Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332, 335 (1st Cir. 2000).

1. The Modern Doctrine of Parens Patriae Standing Allows States to Protect Their Quasi-Sovereign Interests.

The Supreme Court first recognized parens patriae standing in Louisiana v.

Texas, 176 U.S. 1 (1900). There, a quarantine imposed by a Texas health officer

29 As Blackstone observed, this included serving “as ‘the general guardian of

all infants, idiots, and lunatics,’ and as the superintendent of ‘all charitable uses in the kingdom.’” Id. (quoting 3 William Blackstone, Commentaries *47).


17

negatively impacted commerce in Louisiana. Id. at 4, 8–10. Although the Court

dismissed the lawsuit for want of a controversy between the states, it recognized

that Louisiana “present[ed] herself in the attitude of parens patrioe [sic], trustee,

guardian, or representative of all her citizens.” Id. at 19. A year later, the Supreme

Court held that Missouri could sue as parens patriae to enjoin the discharge of

sewage into the Mississippi river, finding that “if the health and comfort of the

inhabitants of a state are threatened, the state is the proper party to represent and

defend them.” Missouri v. Illinois, 180 U.S. 208, 241 (1901).

Six years later, the Court first linked parens patriae to the protection of a

state’s quasi-sovereign interests. Georgia v. Tennessee Copper Co., 206 U.S. 230,

237–38 (1907). Georgia sued to enjoin private copper companies in Tennessee

from discharging noxious gases. Id. at 236. Describing the suit as one “by a state

for an injury to it in its capacity of quasi-sovereign,” Justice Holmes observed that

“[i]n that capacity the state has an interest independent of and behind the titles of

its citizens, in all the earth and air within its domain.” Id. at 237. In a separate suit

decided the same day addressing Colorado’s diversion of water from the Arkansas

River, the Court allowed Kansas to sue as parens patriae to enjoin injury to the

“health and comfort” of its citizens, which affected “the general welfare of the

state.” Kansas v. Colorado, 206 U.S. 46, 99 (1907).


18

Over the following decades, the Supreme Court repeatedly reaffirmed the

states’ right to sue as parens patriae to defend their quasi-sovereign interests in the

health, welfare, and economic well-being of their citizens.30 Then, in 1982, the

Supreme Court provided its clearest articulation of the modern parens patriae

doctrine in Snapp. 458 U.S. at 600–08. In that case, Puerto Rico brought a parens

patriae suit against east coast apple growers for discriminating against Puerto

Rican workers and violating a federal employment service scheme established by

two federal statutes. Id. at 597–98, 608. Distilling eighty years of case law, the

Court held that to bring a claim as parens patriae, “the State must articulate an

interest apart from the interests of particular private parties, i.e., the State must be

more than a nominal party.” Id. at 607. While it declined to articulate a “definitive

list,” the Court recognized two well-established “general categories” of quasi-

30 E.g., New York v. New Jersey, 256 U.S. 296, 301–02 (1921) (allowing suit

to enjoin discharge of sewage into New York harbor because “health, comfort and prosperity of the people of the state and the value of their property being gravely menaced, . . . the state is the proper party to represent and defend such rights”); Pennsylvania v. West Virginia, 262 U.S. 553, 592 (1923) (allowing Pennsylvania to challenge restraint on commercial flow of natural gas because, “as the representative of the public,” Pennsylvania had “an interest apart from that of the individuals affected” that was “immediate and recognized by law”); North Dakota v. Minnesota, 263 U.S. 365, 373–74 (1923) (finding Minnesota had “such an interest as quasi sovereign in the comfort, health, and prosperity of her farm owners that resort may be had to this court for relief”); Georgia v. Pa. R.R. Co., 324 U.S. 439, 443, 445–52 (1945) (allowing Georgia to sue “[i]n her capacity as a quasi-sovereign or as agent and protector of her people against a continuing wrong done to them” by alleged price-fixing of several railroad companies).


19

sovereign state interests: protecting the general well-being of state residents and

preserving its full and equal participation in the federal system. Id.

First, every state “has a quasi-sovereign interest in the health and well-

being—both physical and economic—of its residents in general.” Id. A defendant’s

behavior invades this interest when it affects—directly and indirectly—some

“sufficiently substantial segment of its population.” Id. The Court declined to

“draw any definitive limits on the proportion of the population of the State that

must be adversely affected by the challenged behavior.” Id. But it did note that a

“helpful indication” of sufficient injury is whether “the State, if it could, would

likely attempt to address [the injury] through its sovereign lawmaking powers.” In

other words, a state likely has parens patriae standing to protect the well-being of

its residents if it would address the complained-of injury under state law but for

some external impediment, such as federal preemption. See id.

Second, every state has a quasi-sovereign interest in “securing observance of

the terms under which it participates in the federal system.” Id. at 607–08. This

interest is “distinct from” its interest in its residents’ general well-being. Id.

Pursuant to this second interest, a state can enforce “federal statutes that creat[e]

benefits [for] or alleviat[e] hardships” of their residents. Id. at 608 (citing Georgia

v. Pa. R.R. Co., 324 U.S. 439). A state can also ensure that its residents have equal

enjoyment of fundamental constitutional rights, such as participation “in the free


20

flow of commerce” guaranteed by the Commerce Clause. Id. (citing Pennsylvania

v. West Virginia, 262 U.S. 553).

Applying these principles, the Snapp Court found that Puerto Rico had

properly alleged injuries in both categories. Id. at 608–10. Puerto Rico had parens

patriae standing due to its interest in “the health and well-being of its residents”—

which extended to “securing residents from the harmful effects of discrimination.”

Id. at 609. And it separately had parens patriae standing to pursue “full and equal

participation in the federal employment service scheme” established by federal

statute. Id. at 609–10.

Only a decade ago, the Supreme Court reaffirmed a state’s standing to

protect its quasi-sovereign interests. Massachusetts v. EPA, 549 U.S. 497, 518–26

(2007).31 There, Massachusetts sought to challenge the EPA’s refusal to regulate

greenhouse gases as required by the Clean Air Act. Id. at 514. The Court held that

“the special position and interest of Massachusetts” as a “sovereign State” was of

31 Whether the holding of Massachusetts v. EPA ultimately rested on parens

patriae standing is open to debate. The Court identified a legally sufficient injury in the Commonwealth’s ownership of coastal property, id. at 522, but supported its holding by referencing a state’s well-established right to bring a parens patriaesuit, id. at 519–20 & n.17 (citing R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 290 (5th ed. 2003)). This Court need not decide the precise holding of that case, however, because it nevertheless supports the proposition that states do have the right to bring parens patriae suits to protect their quasi-sovereign interests. See id.


21

“considerable relevance,” entitling it to “special solicitude in our standing

analysis.” Id. at 515, 520.

Indeed, the Court has repeatedly recognized that the state’s special right to

parens patriae standing comes in part from its unique position as a “sovereign

State” in a federal system. Id. at 518. If each state were still fully “independent and

sovereign,” it could “seek a remedy by negotiation, and, that failing, by force.”

Missouri v. Illinois, 180 U.S. at 241. But upon joining the Union, each state

surrendered “certain sovereign prerogatives.” Massachusetts v. EPA, 549 U.S. at

519. A state cannot “invade,” or “negotiate a [] treaty with,” another state or

federal agency to ensure its compliance with federal law. Id. Yet the states “did not

renounce the possibility of making reasonable demands on the ground of their still

remaining quasi-sovereign interests.” Georgia v. Tenn. Copper Co., 26 U.S. at 237.

“[T]he alternative to force,” the Court has observed, “is a suit.” Id.

In sum, a state has the right to bring a parens patriae suit to protect its quasi-

sovereign interests and—as with all suits brought by states—is entitled to “special

solicitude” when it does so. Massachusetts v. EPA, 549 U.S. at 520; Snapp, 458

U.S. at 600–08. To satisfy Article III, “the State must articulate an interest apart

from the interests of particular private parties,” the invasion of which is caused by

the defendant and redressible by the court. See Snapp, 458 U.S. at 607; see also

Spokeo, 136 S. Ct. at 1548; Lujan, 504 U.S. at 590. Two well-established quasi-


22

sovereign interests are the general health and well-being of the state’s residents,

which includes the state’s interest in protecting them from discrimination, and the

state’s full and equal participation in the federal system, which includes equal

enjoyment of federal laws and constitutional rights. See Snapp, 458 U.S. at 607–

08; Georgia v. Pa. R.R. Co., 324 U.S. at 445–52; Pennsylvania v. West Virginia,

262 U.S. at 592. A state alleging that the defendant injured either of these interests

in a way redressible by a court has therefore met the “irreducible minimum” of

Article III. Lujan, 504 U.S. at 590.

2. Massachusetts Has a Right to Bring a Parens Patriae Suit to Protect Its Quasi-Sovereign Interests.

Massachusetts alleges four counts based in the APA: failure to conduct

notice and comment rulemaking, promulgation of the Rules in contravention of the

ACA and other federal laws, violation of the Establishment Clause, and violation

of the equal protection guarantee of the Fifth Amendment.32 J.A. 31–35. In light of

Massachusetts’ position in our federal system, filing a lawsuit is the

Commonwealth’s only recourse to force defendants to comply with federal

statutory and constitutional law. See Massachusetts v. EPA, 549 U.S. at 519;

32 The APA creates a cause of action to challenge agency actions as being

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” as well as “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706.


23

Georgia v. Tenn. Copper Co., 26 U.S. at 237; Missouri v. Illinois, 180 U.S. at 241.

And because Massachusetts seeks, in its suit, to defend its quasi-sovereign

interests, it has parens patriae standing to assert all four claims.

Massachusetts’ quasi-sovereign interests fit within both recognized “general

categories.” First, Massachusetts has a well-established quasi-sovereign interest in

“the health and well-being—both physical and economic—of its residents in

general.” Snapp, 458 U.S. at 607. As set forth above, access to cost-free

contraception is critical to women’s health, education, professional achievement,

economic stability, and social equality. By causing women in Massachusetts to

lose cost-free contraceptive coverage, the Rules will cause both direct and indirect

injuries to the physical and the economic well-being of its residents. Massachusetts

has also alleged that the Rules discriminate against women in violation of the equal

protection guarantee of the Fifth Amendment, the ACA, and Title VII. See J.A.

33–35. As in Snapp, Massachusetts’ quasi-sovereign interest extends to “securing

residents from the harmful effects of discrimination.” 458 U.S. at 609.

Moreover, Massachusetts has tried to remedy the injuries caused by the

Rules but cannot fully do so due to ERISA preemption. Soon after the Defendants

issued the Rules, Massachusetts adopted the Advancing Contraceptive Coverage

and Economic Security in our State (ACCESS) Act. 2017 Mass. Acts ch. 120;

Carey Goldberg, Countering Trump, Mass. Swiftly Passes New Law Ensuring


24

Access To No-Cost Birth Control, WBUR (Nov. 20, 2017).33 This Act ensures

cost-free contraceptive coverage for certain employer-sponsored health plans—but,

due to ERISA, it cannot help the approximately 56% of Massachusetts residents

who receive private commercial health insurance through self-insured plans. See

J.A. 454; 29 U.S.C. § 1144(a), (b)(2)(A); Metropolitan Life Ins. Co. v.

Massachusetts, 471 U.S. 724, 740–47 (1985). According to Supreme Court

precedent, Massachusetts’ attempted use of “sovereign lawmaking powers” to

remedy its injury is a “helpful indication” that the injury “suffices to give the

[Commonwealth] standing to sue as parens patriae.” Snapp, 458 U.S. at 607; see

Massachusetts v. EPA, 549 U.S. at 519.

Second, Massachusetts has a well-established quasi-sovereign interest in

ensuring that the benefits of federal law accrue to its residents. Snapp, 458 U.S. at

608. As a result of the Women’s Health Amendment to the ACA, employers in

Massachusetts (and, indeed, across the United States) must provide women no-cost

coverage for all FDA-approved contraceptive methods, sterilization procedures,

and patient education and counseling. 42 U.S.C. § 300gg-13(a)(4); U.S. Dep’t of

Health & Human Servs., Health Res. & Servs. Admin., Women’s Preventive

33 http://www.wbur.org/commonhealth/2017/11/20/mass-birth-control-

access-law.


25

Service Guidelines (2016).34 The Rules will deny Massachusetts residents their

benefits under the ACA. The APA also mandates that all rules go through notice

and comment rulemaking to allow public comment, and requires all agency action

to be in accordance with the law, the Constitution, and the agency’s statutory

authority. 5 U.S.C. § 553(b), (c); 5 U.S.C. § 706. The Rules did not go through

notice and comment, nor do they comply with the Constitution’s requirement of

equal protection or with the Establishment Clause. As a result, Massachusetts can

sue as parens patriae to enforce these “federal statutes [that] creat[e] benefits” for

its residents, Snapp, 458 U.S. at 608 (citing Georgia v. Pa. R.R. Co., 324 U.S. at

445–52), and to ensure that its residents have equal enjoyment of fundamental

constitutional rights, see id. (citing Pennsylvania v. West Virginia, 262 U.S. at 582,

592 (allowing Pennsylvania parens patriae standing to protect residents from

Commerce Clause violation)).

Because Massachusetts has articulated the invasion of two quasi-sovereign

interests, it has suffered legally cognizable injuries in fact. See Snapp, 458 U.S. at

607–08; see also Spokeo, 136 S. Ct. at 1548; Lujan, 504 U.S. at 590. Because the

Defendants have caused these injuries by promulgating the Rules, and because the

Court can order injunctive relief that remedies the Commonwealth’s injuries,

34 https://www.hrsa.gov/womens-guidelines-2016/index.html.


26

Massachusetts has Article III standing as parens patriae. See Snapp, 458 U.S. at

607; see also Spokeo, 136 S. Ct. at 1548; Lujan, 504 U.S. at 590.

B. Prudential Limitations on Parens Patriae Standing Do Not Bar Massachusetts’ Suit.

Although, as here, an invasion of a state’s quasi-sovereign interests satisfies

Article III, Lujan, 504 U.S. at 590, the Supreme Court has suggested several

narrow limitations on a state’s exercise of its parens patriae standing. The Court

has indicated that a state cannot ordinarily bring a parens patriae suit to “protect

her citizens from the operation of federal statutes.” Massachusetts v. EPA, 549

U.S. at 520 n.17 (quoting Georgia v. Pa. R.R. Co., 324 U.S. at 447); accord

Massachusetts v. Mellon, 262 U.S. 447, 484–86 (1923). It has also observed that a

state cannot ordinarily bring a parens patriae suit to “question [the] distribution of

powers between the State and the national government.” Georgia v. Pa. R.R. Co.,

324 U.S. at 445–46 (citing Mellon, 262 U.S. 447). Massachusetts’ suit implicates

neither scenario.

These limitations are not grounded in Article III, which focuses on “whether

the plaintiff has alleged such a personal stake in the outcome of the controversy as

to warrant his invocation of federal-court jurisdiction and to justify exercise of the

court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498–99

(1975) (internal quotation marks omitted). As established above, Massachusetts


27

satisfies this “minimum constitutional mandate” through the injury to its quasi-

sovereign interests. Id. at 499. Instead, these limitations are best characterized as

“prudential.” Id. at 498 (recognizing that standing has both constitutional and

prudential limitations); see Massachusetts v. EPA, 549 U.S. at 539–40 & n.1

(Roberts, C.J., dissenting) (referring to state’s inability to bring a parens patriae

suit against a federal statute as a “prudential requirement”); Md. People’s Counsel

v. FERC, 760 F.2d 318, 321–22 (D.C. Cir. 1985) (Scalia, J.) (holding that Mellon

imposed prudential limitation on state parens patriae standing); Challenge v.

Moniz, 218 F. Supp. 3d 1171, 1177–78 (E.D. Wash. 2016) (holding that Mellon is

a “prudential standing limit”).

Both limitations arise from Mellon, a case in which Massachusetts

challenged the constitutionality of the Maternity Act,35 claiming that “Congress

ha[d] usurped the reserved powers of the several states.” 262 U.S. at 483. The

Supreme Court declined to exercise jurisdiction for two reasons. First,

Massachusetts had presented a question that was “political, and not judicial in

character” and so was “not a matter which admits of the exercise of the judicial

power.” Id. at 483. The Court distinguished such a nonjudiciable political question

35 The Maternity Act distributed money to states that complied with certain

federal provisions aimed at reducing maternal and infant mortality and protecting the health of mothers and infants. Mellon, 262 U.S. at 497.


28

from one involving “rights of person or property,” “rights of dominion over

physical domain,” and “quasi sovereign rights actually invaded or threatened,”

which are judiciable. See id. at 484–85 (emphasis added); see Massachusetts v.

EPA, 549 U.S. at 520 n.17 (noting this language indicated Mellon did not sweep

broadly). Second, the Supreme Court held that, under the facts in Mellon, “a state,

as parens patriae, may [not] institute judicial proceedings to protect citizens of the

United States from the operation of [U.S.] statutes.” Mellon, 262 U.S. at 485.

There, “it is the United States, and not the [individual] state, which represents them

as parens patriae.” Id. at 486. The Mellon Court was quick to limit its own holding,

however: it “need not go so far as to say that a state may never intervene by suit to

protect its citizens against any form of enforcement of unconstitutional acts of

Congress,” only that it was “clear that the right to do so does not arise here.” Id. at

485.36

But these prudential limitations do not prevent a state from bringing a

parens patriae suit against a federal agency “to assert its rights under federal law.”

36 A footnote in Snapp observed that a “State does not have standing

as parens patriae to bring an action against the Federal Government.” 458 U.S. at 610 n.16 (citing Mellon, 262 U.S. at 485–86). In the same footnote, the Court observed: “[h]ere, however, the Commonwealth is seeking to secure the federally created interests of its residents against private defendants.” Id. Therefore, the Snapp Court could not—and so did not—decide whether and to what extent a State could bring a parens patriae suit against the federal government. See also Massachusetts v. EPA, 549 U.S. at 520 n.17.


29

Massachusetts v. EPA, 549 U.S. at 520 n.17. As a result, Massachusetts had

standing to challenge the EPA for violating the Clean Air Act by refusing to

regulate greenhouse gas emissions. Id. at 517–26 & n.17. The Court recognized

that Massachusetts did not “dispute that the Clean Air Act applie[d] to its citizens;

it rather [sought] to assert its rights under the Act.” Id. at 520 n.17.

Likewise, here, Massachusetts may assert its rights under APA and the ACA

to protect its residents from the harmful effects of the Rules. Unlike in Mellon,

Massachusetts does not seek to “protect her citizens from the operation of federal

statutes.” See Massachusetts v. EPA, 549 U.S. at 520 n.17 (quoting Georgia v. Pa.

R.R. Co., 324 U.S. at 447); accord Mellon, 262 U.S. at 485. Nor does

Massachusetts “question [the] distribution of powers between the State and the

national government.” Georgia v. Pa. R.R. Co., 324 U.S. at 445–46 (citing Mellon,

262 U.S. at 447). To the contrary, Massachusetts seeks to enforce existing federal

statutes—specifically, the APA and the ACA—in the same way it was allowed to

enforce the Clean Air Act over a decade ago. Massachusetts v. EPA, 549 U.S. at

520 n.17.

As set forth above, all four counts brought by Massachusetts proceed under

the APA, which allows a claim to challenge agency action that is “not in

accordance with law” or “contrary to [a] constitutional right, power, privilege, or


30

immunity.” 5 U.S.C. § 706(2); J.A. 31–35.37 Massachusetts alleges that the Rules

violate the APA, the ACA and two constitutional rights. It does not allege that the

Rules have usurped any state power, nor that the ACA or APA are

unconstitutional. Because Massachusetts seeks only to ensure that a federal agency

complies with a duly-enacted law of Congress, no prudential limitation bars its

assertion of parens patriae standing here.

37 The APA creates this cause of action for any “person” who is “adversely

affected or aggrieved by agency action.” 5 U.S.C. § 702. Massachusetts is a “‘person’ entitled to enforce” the APA. E.g., Texas v. United States, 809 F.3d 134, 152 (5th Cir. 2015) (allowing states to sue under APA), aff’d by equally divided Court, 136 S. Ct. 2271 (2016).


31

CONCLUSION

For these reasons, this Court should find that Massachusetts has Article III

and should reverse the decision of the district court.

Respectfully submitted,

JOSH SHAPIROAttorney GeneralCommonwealth of Pennsylvania

/s/ Michael J. FischerJonathan Scott GoldmanExecutive Deputy Attorney GeneralMichael J. FischerChief Deputy Attorney GeneralAimee D. ThomsonDeputy Attorney General Office of Attorney GeneralStrawberry SquareHarrisburg, PA 17120(215) [email protected]

Date: September 24, 2018

(Additional Counsel Listed on Next Page)


32

ADDITIONAL COUNSEL

XAVIER BECERRA Attorney General of California 1300 I Street Sacramento, CA 95814

GEORGE JEPSENAttorney General of Connecticut55 Elm StreetHartford, CT 06106

MATTHEW P. DENNAttorney General of DelawareCarvel State Building, 6th Floor820 North French StreetWilmington, DE 19801

KARL A. RACINEAttorney General for the District of Columbia441 4th Street, NW, Suite 630 SouthWashington, D.C. 20001

RUSSELL A. SUZUKIAttorney General of Hawaiʻi 425 Queen StreetHonolulu, HI 96813

THOMAS J. MILLERAttorney General of IowaHoover BuildingDes Moines, IA 50319

JANET T. MILLSAttorney General of MaineState House Station 6Cross Office BuildingAugusta, ME 04333


33

BRIAN E. FROSHAttorney General of Maryland200 Saint Paul PlaceBaltimore, MD 21202

LORI SWANSONAttorney General of Minnesota102 State Capitol75 Rev. Dr. Martin Luther King Jr. Blvd.St. Paul, MN 55155

BARBARA D. UNDERWOODAttorney General of New York28 Liberty StreetNew York, NY 10005

JOSHUA H. STEINAttorney General of North CarolinaNorth Carolina Department of Justice114 W. Edenton StreetRaleigh, NC 27603

ELLEN F. ROSENBLUM Attorney General of Oregon 1162 Court Street N.E. Salem, OR 97301

PETER F. KILMARTINAttorney General of Rhode Island150 S. Main StreetProvidence, RI 02903

THOMAS J. DONOVAN, Jr.Attorney General of Vermont 109 State StreetMontpelier, VT 05609-1001


34

MARK R. HERRINGAttorney General of Virginia202 North 9th StreetRichmond, VA 23219

ROBERT W. FERGUSONAttorney General of WashingtonP.O. Box 40100Olympia, WA 98504-0100


35

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the requirements of Fed. R. App. P.

32(a)(5) and 32(a)(6) because it has been prepared in a 14-point proportionally

spaced serif font.

I further certify that this brief complies with the type-volume limitation of

Fed. R. App. P. 29(a)(5) because it contains 5,617 words excluding the parts of the

brief exempted under Rule 32(f).

/s/ Michael J. FischerMichael J. Fischer, Bar No. 1185506Chief Deputy Attorney General

Dated: September 24, 2018


36

CERTIFICATE OF SERVICE

I certify that on September 24, 2018, I electronically filed the foregoing

document with the Clerk of the Court of the United States Court of Appeals for the

First Circuit by using the appellate CM/ECF system. I certify that all participants

in this case are registered CM/ECF users and that service will be accomplished by

the appellate CM/ECF system.

/s/ Michael J. FischerMichael J. Fischer, Bar No. 1185506Chief Deputy Attorney General

Dated: September 24, 2018


EXHIBIT A


2

Table 1

Number of Women with Employer-Sponsored Insurance Who Are Income-Eligible for State-Funded Contraceptive Coverage1

State

Insured, Income-Eligible Women

Between the Ages of15 and 452

Percent of Enrollees Covered

Under a Self-Funded Plan3


Between the Ages of 15 and 45 in

Self-Funded Plans4

California 1,415,247 41.6% 588,743Connecticut 151,198 59.3% 89,660Delaware 45,491 68.3% 31,070Hawaiʻi 88,650 37.6% 33,332Iowa 221,138 57.4% 126,933

Maryland 277,509 49.6% 137,644Massachusetts 365,762 56.6% 207,021

Minnesota 183,765 N/A 183,765New York 811,392 53.9% 437,340

Oregon 188,570 53.7% 101,262Pennsylvania 580,295 N/A 580,295

Vermont 23,575 60.2% 14,192Virginia 318,424 N/A 318,424

Washington 317,669 57.4% 182,342Total 4,988,685 3,032,023

1 These numbers are derived from the Interactive Public Use Microdata Series (https://usa.ipums.org/usa/) which provides detailed data from the U.S. Census Bureau’s American Community Survey (2015), the State Health Access Data Assistance Center, and the Agency for Healthcare Research and Quality. Each person is assigned to a household health insurance unit (HIU). The incomes of all members of the same HIU are summed and divided by the FPL for the relevant household size to generate the income of the HIU as a percentage of the FPL. For Column 2, the number reflects women who: (a) are between the ages of 15 and 45; (b) have employer/union provided health insurance; and (c) have HIU income under the relevant percent of the FPL to qualify for that State’s program. That initial estimate is further refined (Column 4) based on the percentage of enrollees in self-insured employer plans in each State (Column 3), provided that


3

the State has a contraceptive equity law. We recognize that other data sources and methodologies may achieve different results. Whatever the precise calculations, however, the ultimate conclusion—that millions of women with employer-sponsored insurance are income-eligible for state-funded programs—remains accurate.

2 For each State on the list, the following is the highest FPL for a broadly applicable program that is at least partially state funded: California—200% (Family PACT); Connecticut—263% (Medicaid Family Planning Expansion); Delaware—250% (Title X); Hawaiʻi—250% (Title X); Iowa—300% (Family Planning Program); Maryland—250% (Title X); Massachusetts—300% (Sexual Reproductive Health Program); Minnesota—200% (Family Planning Program); New York—223% (Family Benefit Program); Oregon—250% (Oregon Contraceptive Care); Pennsylvania— 220% (Medicaid Family Planning Expansion); Vermont—200% (Department of Health Global Commitment Investment Grant); Virginia—200% (Plan First Program); Washington—260% (Take Charge Program).

3 The percentage of self-insured plans is taken from: U.S. Dept. of Health & Human Services, Medical Expenditure Panel Survey, Percent of private-sector enrollees that are enrolled in self-insured plans at establishments that offer health insurance by firm size and State: United States, 2016, https://meps.ahrq.gov/data_stats/summ_tables/insr/state/series_2/2016/tiib2b1.pdf (ARHQ Database). In many cases, the ARHQ Database provides significantly lower self-insured coverage rates than other sources. Consistent with other efforts, we have used the figures provided by the Database to provide a conservative estimate.

4 All of the listed States, except Minnesota, Pennsylvania and Virginia have contraceptive equity laws that generally require state-regulated plans to cover all FDA-approved forms of contraception.


4

TABLE 2

Number of Women with Employer-Sponsored Insurance Who Are Income Eligible for Medicaid as Secondary Payer for Contraceptive Services5

State


Between the Ages of 15 and 456

Percent of EnrolleesCovered

Under a Self-Funded Plan


Between the Ages of 15 and 45 in

Self-Funded Plans

Connecticut 85,157 59.3% 50,498Delaware 25,163 68.3% 17,186Hawaiʻi 44,278 37.6% 16,649

Maryland 168,016 49.6% 83,336Massachusetts 195,584 56.6% 110,701

Minnesota 127,349 N/A 127,349Oregon 99,246 53.7% 53,295

Pennsylvania 376,451 N/A 376,451Rhode Island 32,695 47.9% 15,661

Vermont 18,613 60.2% 11,205Washington 160,796 57.4% 92,297

Total 1,333,348 954,628

5 The Medicaid program serves as a secondary payer for contraceptive services in each of the States listed in Table 2.

6 For all States listed in this table, the relevant Medicaid FPL used to calculate the figures is 138%.


pa office of attorney general - united states court of … · 2018-09-25 · no. 18-1514 united...

Documents